Are we now a colorblind nation?

LeRoy GoldmanThe Shadow Knows

Published: Sunday, March 24, 2013 at 4:30 a.m.

Last Modified: Friday, March 22, 2013 at 11:56 a.m.

We now know that the enactment of the Voting Rights Act almost a half-century ago has been responsible for nothing short of a reformation in the expansion of voting rights, particularly in the South where there had been pervasive voter discrimination against African-Americans.

We also know that the 1982 amendments to the act were responsible for the creation of majority-minority congressional districts, and that they have produced so many gerrymandered seats for both parties.

Since its enactment in 1965, the act has been renewed four times. The most recent renewal was in 2006 for another 25 years. The renewal passed the House 390-33 and the Senate 98-0. Such lopsided majorities would seem to suggest that the extension is an obvious, unblemished good. But maybe there's more here than meets the eye.

Let's look at a case currently before the Supreme Court, Shelby v. Holder. Shelby County, Ala., is challenging the constitutionality of Section 5 of the act. That is the section that requires certain state and local governments in the South with a history of voter discrimination to seek and receive approval from the federal government prior to making any changes in their voting procedures, regardless of how trivial such changes are. This is what is called "pre-clearance."

When Section 5 was enacted, there was no doubt that the states and counties it covered in the South had an obvious track record of voter disenfranchisement aimed at blacks. And there is no disagreement that Section 5's requirement for pre-clearance tramples on federalism and the sovereignty of the states. In 1965, that was an acceptable price to pay in order to begin to deal with voter disenfranchisement. The question before the court now is whether it's still an acceptable price.

The oral argument before the court a month ago suggested that the four liberal justices favor the continuation of Section 5, while four conservative justices appear poised to strike it down. Justice Anthony Kennedy is the swing vote. By this June, we will know whether the court will do what Congress would not do when it overwhelmingly voted to extend Section 5 in 2006: defy political correctness and recognize that Section 5 has done its job but is no longer needed.

But wait. There's more!

The court is also considering another case where race is at the core of the constitutional dispute, Fisher v. University of Texas. Abigail Fisher, who is white, argues she was not admitted to the University of Texas because of her race. It is possible that the court's ruling in this case may profoundly alter the current nine-year precedent on affirmative action that it set in 2003 when Justice Sandra Day O'Connor wrote the 5-4 decision (Grutter v. Bollinger) in which the court affirmed the University of Michigan's use of race as a factor in its admissions policy so long as it did not amount to a quota system.

The central point of the Grutter v. Bollinger decision in 2003 was that the university can make use of race in its admissions policy until it achieves a "critical mass" of diversity within its student body. The problem then and now is that "critical mass" remains an undefined term. Universities won't define it for fear that, if they do, they will have cut across the bow of what is prohibited — using a racial quota system.

Greg Garre, who represented the University of Texas before the court, tried to argue that a "critical mass" was when underrepresented minorities don't feel isolated. Chief Justice Roberts didn't buy Garre's argument.

What makes this case so important is that its impact will likely go way beyond Fisher and the University of Texas. It's possible the Fisher decision will substantially reduce the degrees of freedom that universities have with respect to the use of race in their admissions policies. Such a ruling would amount to a watershed in the realm of affirmative action.

Like the Shelby case, Justice Kennedy holds the swing vote. A hint of Kennedy's thinking emerged during the questioning of Garre concerning the university's use of race in admissions. Kennedy pointedly asked Garre, "So what you're saying is that what counts is race above all?"

But the most significant piece of this fascinating puzzle is Chief Justice Roberts. Jeffery Toobin, a legal analyst who writes for The New Yorker, believes Roberts is on the verge of letting all of us know that his signature issue will be an affirmation that the Constitution is colorblind. The decisions this June in Shelby and Fisher may have the same bottom line — the nation's fight against racial discrimination has been won.

Toobin states, "Race-conscious policies have transformed our schools and workplaces. The Voting Rights Act has given the South new and very different politics. But affirmative action, in Roberts' view, has become discrimination against whites."

If, however, current policy is maintained, we can all look forward to 2043 when, according to Census Bureau statistics, America will be a majority-minority nation. At that point, it will be the whites who will be packed into racially homogenous, gerrymandered districts!

And, were that to happen, I believe Judge Robinson O. Everett would look down from heaven and conclude that white majority-minority districts in the mid-21st century are just as abhorrent and unconstitutional as black ones were in the late 20th century.

The Shadow's always been colorblind, and Goldman can be reached at tks12no12@gmail.com.

<p>We now know that the enactment of the Voting Rights Act almost a half-century ago has been responsible for nothing short of a reformation in the expansion of voting rights, particularly in the South where there had been pervasive voter discrimination against African-Americans.</p><p>We also know that the 1982 amendments to the act were responsible for the creation of majority-minority congressional districts, and that they have produced so many gerrymandered seats for both parties.</p><p>Since its enactment in 1965, the act has been renewed four times. The most recent renewal was in 2006 for another 25 years. The renewal passed the House 390-33 and the Senate 98-0. Such lopsided majorities would seem to suggest that the extension is an obvious, unblemished good. But maybe there's more here than meets the eye.</p><p>Let's look at a case currently before the Supreme Court, Shelby v. Holder. Shelby County, Ala., is challenging the constitutionality of Section 5 of the act. That is the section that requires certain state and local governments in the South with a history of voter discrimination to seek and receive approval from the federal government prior to making any changes in their voting procedures, regardless of how trivial such changes are. This is what is called "pre-clearance."</p><p>When Section 5 was enacted, there was no doubt that the states and counties it covered in the South had an obvious track record of voter disenfranchisement aimed at blacks. And there is no disagreement that Section 5's requirement for pre-clearance tramples on federalism and the sovereignty of the states. In 1965, that was an acceptable price to pay in order to begin to deal with voter disenfranchisement. The question before the court now is whether it's still an acceptable price.</p><p>The oral argument before the court a month ago suggested that the four liberal justices favor the continuation of Section 5, while four conservative justices appear poised to strike it down. Justice Anthony Kennedy is the swing vote. By this June, we will know whether the court will do what Congress would not do when it overwhelmingly voted to extend Section 5 in 2006: defy political correctness and recognize that Section 5 has done its job but is no longer needed.</p><p>But wait. There's more!</p><p>The court is also considering another case where race is at the core of the constitutional dispute, Fisher v. University of Texas. Abigail Fisher, who is white, argues she was not admitted to the University of Texas because of her race. It is possible that the court's ruling in this case may profoundly alter the current nine-year precedent on affirmative action that it set in 2003 when Justice Sandra Day O'Connor wrote the 5-4 decision (Grutter v. Bollinger) in which the court affirmed the University of Michigan's use of race as a factor in its admissions policy so long as it did not amount to a quota system.</p><p>The central point of the Grutter v. Bollinger decision in 2003 was that the university can make use of race in its admissions policy until it achieves a "critical mass" of diversity within its student body. The problem then and now is that "critical mass" remains an undefined term. Universities won't define it for fear that, if they do, they will have cut across the bow of what is prohibited — using a racial quota system.</p><p>Greg Garre, who represented the University of Texas before the court, tried to argue that a "critical mass" was when underrepresented minorities don't feel isolated. Chief Justice Roberts didn't buy Garre's argument.</p><p>What makes this case so important is that its impact will likely go way beyond Fisher and the University of Texas. It's possible the Fisher decision will substantially reduce the degrees of freedom that universities have with respect to the use of race in their admissions policies. Such a ruling would amount to a watershed in the realm of affirmative action.</p><p>Like the Shelby case, Justice Kennedy holds the swing vote. A hint of Kennedy's thinking emerged during the questioning of Garre concerning the university's use of race in admissions. Kennedy pointedly asked Garre, "So what you're saying is that what counts is race above all?"</p><p>But the most significant piece of this fascinating puzzle is Chief Justice Roberts. Jeffery Toobin, a legal analyst who writes for The New Yorker, believes Roberts is on the verge of letting all of us know that his signature issue will be an affirmation that the Constitution is colorblind. The decisions this June in Shelby and Fisher may have the same bottom line — the nation's fight against racial discrimination has been won.</p><p>Toobin states, "Race-conscious policies have transformed our schools and workplaces. The Voting Rights Act has given the South new and very different politics. But affirmative action, in Roberts' view, has become discrimination against whites."</p><p>If, however, current policy is maintained, we can all look forward to 2043 when, according to Census Bureau statistics, America will be a majority-minority nation. At that point, it will be the whites who will be packed into racially homogenous, gerrymandered districts!</p><p>And, were that to happen, I believe Judge Robinson O. Everett would look down from heaven and conclude that white majority-minority districts in the mid-21st century are just as abhorrent and unconstitutional as black ones were in the late 20th century.</p><p>The Shadow's always been colorblind, and Goldman can be reached at tks12no12@gmail.com.</p>